CMS Rapidly Approves States’ Section 1135 Waivers in Response to the COVID-19 Pandemic

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The Centers for Medicare & Medicaid Services (CMS) continues its issuance of Section 1135 waivers, waiving or modifying certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure that states and other healthcare providers have adequate healthcare items and services to meet the demands of the novel coronavirus (COVID-19) pandemic. Additional background information on these waivers and recent CMS efforts related to the COVID-19 pandemic can be found here. The Section 1135 waiver approval documents from CMS may be accessed on the Medicaid website.

Beginning with Florida on March 17, 2020, and Washington State two days later, CMS has now approved Section 1135 waivers for 23 states, adding approvals for the following states between March 23 and March 25, 2020: Alabama, Arizona, California, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, and Virginia.

Generally, these waivers offer states relief and flexibility in the following areas:

Temporary Suspension of Medicaid Fee-For-Service Prior Authorization Requirements

CMS will allow states to waive specific state plan requirements to obtain prior authorization for benefits administered through the fee-for-service delivery system.

The following states received waivers in this category: Arizona, California, Illinois, Indiana, Kansas, Kentucky, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, and Virginia.

Extension of Pre-Existing Authorizations for Beneficiaries Who Have Previously Received Prior Authorization

Under this waiver, beneficiaries receiving prior authorization for services on or after March 1, 2020, may continue to receive such services through the end of the public health emergency without a new or renewed prior authorization.

The following states received waivers in this category: Arizona, Illinois, Indiana, Kansas, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, North Dakota, Oregon, Rhode Island, and Virginia.

Suspension of Pre-Admission Screening and Annual Resident Review (PASRR) Level I and II Assessments for 30 days

For states receiving this waiver, CMS will allow the state to suspend the PASRR timing requirements for Level I and Level II Assessments. Medicaid-certified nursing facilities will be allowed to delay the performance of Level I and Level II assessments of individuals with mental illness or intellectual disabilities for 30 days after admission. The exemption for hospital discharges (found at 42 C.F.R. §483.106) will be extended to all new admissions to these facilities. Once this 30-day period expires, a resident review, as required by 42 C.F.R. §483.114, must be performed for individuals with mental illness or intellectual disabilities as soon as resources become available.

The following states received waivers in this category: Alabama, Arizona, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, and South Dakota.

Modification of State Fair Hearing Requests and Appeal Timelines

States may do the following:

  1. Allow enrollees additional time for requesting a fair hearing for eligibility and fee-for-service issues.
  2. Modify the timeframe for managed care entities to resolve an appeal before an enrollee may request a state fair hearing to no less than one day, ensuring that enrollees can more quickly transition to the state fair hearing process.
  3. Expand the timeframe for enrollees to request a fair hearing when their deadline occurs during the period of the Section 1135 waiver.

The following states received waivers in this category: California, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, and Virginia.

Relaxation of Provider Enrollment Requirements

CMS will allow states to temporarily enroll out-of-state providers who are enrolled with another State Medicaid Agency or Medicare in their Medicaid programs for the duration of the public health emergency. CMS will also permit states to enroll providers not currently enrolled with another State Medicaid Agency or Medicare temporarily and waive the requirements listed below if other minimum requirements are satisfied:

  1. In-state licensure.
  2. Payment of an application fee.
  3. Fingerprint-based criminal background checks.
  4. Site visits.

Out-of-state providers not enrolled in a state’s Medicaid program must continue to follow CMS guidelines for reimbursement, but CMS will waive the requirement that claims submitted be related to care provided to a single participant or a single instance of care. Some states may also temporarily cease revalidation of providers located in the state.

Where applicable, the same provider enrollment waiver will be extended to the state’s CHIP.

The following states received waivers in this category: Arizona, California, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, and South Dakota.

Expansion of the Ability to Provide Services in Alternative Settings

This waiver permits facilities – including nursing facilities, intermediate care facilities for individuals with intellectual and developmental disabilities, psychiatric residential treatment facilities, and hospital nursing facilities – to be reimbursed for services rendered to an unlicensed facility, where an emergency evacuation or relocation is required while the placing facility continues to provide services. In these instances, the state must ensure the unlicensed facility meets minimum health and safety standards. The placing facility will determine the reimbursement rate to the unlicensed facility.

The following states received waivers in this category: California, Illinois, Indiana, Kentucky, Louisiana, Mississippi, Missouri, New Hampshire, New Jersey, North Carolina, Oklahoma, Oregon, and South Dakota.

Additional Waivers

Missouri and Oregon received a Section 1135 waiver that allows each state to bypass public notice requirements for state plan amendments. For state plan amendments that increase access to items and services related to COVID-19, the state will not need to follow usual public notice and comment procedures, but CMS has encouraged these states to continue making relevant information available to the public in some manner. Missouri also received a waiver to the state plan amendment submission deadline that waives the March 31, 2020 deadline for COVID-19-related amendments but allows the state to retain a March 2020 effective date.

North Dakota and Oregon also received Section 1135 waivers to modify the timeframe for tribal consultations associated with state plan amendments.

Generally, these Section 1135 waivers are effective March 1, 2020, and will terminate when the public health emergency ceases. CMS is expected to continue receiving and approving state requests for Section 1135 waivers for the duration of this public health emergency.

We will continue to update this alert as CMS grants additional Section 1135 waivers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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